25 S.D. 208 | S.D. | 1910
This was an action to restrain the county auditor 'and county commissioners of Potter county from issuing certain bonds voted for at the general election in 1908, for the purpose of constructing a courthouse. Defendants appeared and demurred to the complaint on the grounds that there is a defect of parties plaintiff, and that the complaint does not state facts sufficient to constitute a cause of action. The demurrer was sustained, and plaintiffs appeal, and assign as error the sustaining of such demurrer. The record does not show on what particular ground the demurrer was sustained. It appears from the allegations of the complaint that plaintiffs are citizens and taxpayers of Potter county. In State v. Lien, 9 S. D. 297, 68 N. W. 748, and in State v. Menzie, 17 S. D. 535, 97 N. W. 745, it is held that where the relief sought is a public matter, or one of public right, any taxpayer or elector of the county may apply for and obtain a writ of mandamus, in a proper case, to enforce the performance of a public duty, and we are of the opinion that for the same reason any taxpayer or elector might, in a proper case, maintain an injunction proceeding restraining a public officer from the performance of an illegal act.
The complaint is a voluminous document, and it would serve no useful or practical purpose to repeat it in full, but it is sufficient to say that the statements therein contained are so indefinite and contradictory in terms and consist so almost wholly of conclusions that the court was clearly right in sustaining the demurrer. In one part of this complaint appears the following: “And the
Finding no error in the record, the judgment of the circuit court is' affirmed.